of three members, each of whom shall own at "(d) The first board of trustees, which is here "(e) Each board of trustees shall elect its own president, such vice presidents as it may see proper, secretary, and treasurer, and may create and prescribing their duties as they may deem such other offices, filling them by appointment, wise, necessary, or convenient to carry on the business of the company. praying for the appointment of a receiver, without notice, of all the property of the Texline-Burk Oil Company; that citation issue to each of the defendants; that upon a final hearing an accounting be had; that judgment be rendered in favor of plaintiffs for the use and benefit of themselves and other interested shareholders who may intervene for all sums of money misappropriated by the trustees of the association or other named defendants requiring them to pay the same into court; for a judgment against the defendants Bingham and Poole for any amount of profits illegally charged the association on the oil and gas lease referred to; that a judgment be rendered in favor of plaintiffs herein or so many of them as purchased any of the illegal increased capital stock; against the organizers, defendants herein, for the respective amounts paid for such stock; that the deed of trust lien be canceled; that the holder or holders of certain notes, if defendants herein, be required to cancel and surrender said notes; and for such other and further relief, in law and equity, etc. The petition alleges, in sub-trustees under the same declaration of trust stance: That on or about the 19th day of October, 1918, C. S. Bingham, W. A. Poole, E. L. McCullough, J. L. Allred, G. E. Martin, G. F. Ward, and W. R. Dyche formed a jointstock association, adopting the name of "Texline-Burk Oil Company" as its firm name, for the following purposes: "(1) To secure an oil and gas lease on 2% acres of land in Wichita county, Tex., out of the William P. B. Du Bose survey; and (2) to develop the above described property; and (3) to produce oil and gas and to sell the same." That said parties executed written articles of association, with an agreed capital of $60,000, divided into 12,000 shares or interests of the value of $50 each; that said articles of association, among others, contained the following: "(a) The capital stock of the company may be increased from time to time by a vote of a majority of the stockholders held pursuant to the articles of association and such by-laws as may be adopted from time to time. "(b) When any increase of the capital stock is authorized and offered for subscription, the shareholders of the company appearing of record at the time the stock is offered for subscription shall, unless they expressly waive it, have the prior right for a period of ten days after notice to them to subscribe for and purchase such stock increase at a price to be fixed by the board of trustees, not less than par, in the same proportions in which they own the existing capital stock. The notice provided for in this article shall be given by mailing a letter addressed to each holder of a share or shares to his registered post office address, and the notice period shall begin with the day such letter or notice is mailed. "(c) The entire affairs of the company shall be managed by a board of trustees consisting "(f) The title of all property acquired or to be acquired from time to time by the company and all investments shall be made and held in the names of the then trustees, as such, the tion of trust for and on behalf of the company. survivor or survivors of them, under a declaraSuch trustees shall hold said property as joint tenants, and not as tenants in common upon the trust and with the power herein stated, provided, however, for convenience in handling the business of the company the title to real estate may be held in the name of any one of said heretofore referred to. "(g) The trustees shall, by a vote of a majority of the board of trustees, have full power and authority to conduct the business of the company, to make necessary repairs, to borrow money on the credit of the company, executed upon such terms as they may deem proper to article 2, and generally to do and perform all secure an oil and gas lease as provided for in things which in their judgment may be necessary and proper in the management and conduct of the business of the company, except as restricted and instructed as follows: "(1) The trustees shall not use the funds or earnings of the company to secure oil or gas leases except as provided in article 2, but may use the funds and earnings of the company to develop said lease property described in ar ticle 2. "(2) The trustees are hereby instructed to prepare and to pay to stockholders (shareholders) a dividend on the net earnings or profits of the company once a month. provided, however, that said net earnings or profits shall amount to at least 10 per cent. of the outstanding capital stock. "(h) A declaration of trust in accordance herewith shall be executed by the trustees appointed hereunder, binding alike on them, their survivors of them, their successors, and their survivor or survivors, and all persons dealing with them. "(i) At any annual meeting of the shareholders or any special meeting called for the purpose the articles of association may be amended by a vote of three-fourths of the shares present and represented, and by-laws may be adopted, amended, or repealed, except section 1 of article 2 and paragraph 9 of article 7 (relating to the payment of dividends), which shall not be amended or repealed in any respect not inconsistent with the articles of association, by a vote of two-thirds of the shares present or represented. "(j) The board of trustees shall, whenever they think it necessary, call a special meeting (220 S. W.) of the shareholders, stating the purpose thereof what is known as the Fowler sand, unless upon notice to that effect deposited in the post- oil or gas was found in paying quantities office at the place of the principal office of the at a lesser depth, said well to be drilled, company, addressed to each shareholder at his registered post office address ten days before equipped and together with said lease to be the date of the proposed meeting. "(k) The president, or in his absence a vice president, shall sign all certificates of membership, preside at all meetings of the board of trustees and of the shareholders, and shall do and perform and render such acts and services as the board of trustees shall prescribe and require, and shall receive such compensation for service as may from time to time be fixed by the board. The secretary or the assistant secretary shall countersign all certificates of membership and shall keep such minutes, records, and books as the board of trustees may require, attend all meetings of the board, and render such other services as may be imposed upon him, and shall receive such compensation as may be fixed by the board from time to time. The treasurer shall perform such duties as the board may impose upon him, and shall receive such compensation as may be fixed by the board from time to time. "(D) The trustees, or a majority of them, and the secretary, shall from time to time, as the articles or by-laws are amended or repealed, certify under the seal of the company to the same as amended to the date of certification, and their certificate to that effect shall constitute full proof of the facts thereby shown. "(m) The certificate of stock shall be issued and signed by the president of the company and countersigned by the secretary or assistant secretary, and shall show the number of interests of shares owned by the holder of said certificate." delivered to the stockholders. It is further alleged that, after selling and disposing of the capital stock and receiving the $60,000 therefor, the trustees failed and refused to carry out their duties as provided in the articles of association, and to drill or cause to be drilled a well of any kind on said 22-acre tract; that, contrary to and in violation of the articles of the association, the defendants sought to increase the capital stock, and did about the month of February, 1919, increase the capital stock $7,000, and thereafter sold such increased capital stock, issuing certificates to the purchasers thereof in due form; that, if any attempt was made to increase the capital stock, it was without notice to or knowledge of the stockholders and in violation of the rules and regulations of the association, and such increase and issue of certificates was void, except that the money received by defendants for such increased capital stock creates outstanding indebtedness against the association to that extent; that the trustees fraudulently misappropriated the funds of the association to the amount of $3,500 in acquiring from the defendants Bingham and Poole a lease on 14 acres of land in Wichia county, said lease being executed May 1, 1919, and that said misappropriation was in violation of section 1, art. 2, of the articles of association, for which said trustees are personally liable to plaintiffs and other shareholders; that they also misappropriated a large sum of money of the association, in that they fraudulently caused a well to be drilled on said 11⁄2 acres of land, which well was completed during the month of April, 1919; that said well was drilled on said land with the funds of the association prior to the time the trustees had acquired any written lease of the property, and while the title was in other persons than the trustees; that they acquired said land from Bingham and Poole, who were then officers of the association, through a conspiracy on the part of said Bingham and Poole and said trustees, paying them and other defendants who were interested in the lease a profit of at least $10,000, although Bingham and Poole did not have at any time any individual funds, but had purchased the land upon the credit of and with funds belonging to the association, and fraudulently acquired the title thereto in their individual names, and immediately thereafter transferred the same to the association. It is further alleged that the board of trustees elected defendant Bingham as president, defendant McCullough as secretary, and defendant Poole as the treasurer, which offices they still hold; that plaintiffs are the holders of more than 200 shares in said joint-stock association, and as such sue for the use and benefit of themselves and such other shareholders as have bought and paid for their stock in the association; that there after, on and before the 1st day of January, 1919, the defendants (other than the defendants Richards and the Dallam County Bank) offered for sale and sold shares in the association at the par value of $50, 200 of said shares being purchased and paid for by plaintiff, who sold certificates of stock issued by said officers; that as said shares were sold by the defendants they issued a written contract signed by said officers (other than the defendants Richards and said bank) wherein and whereby they represented to all purchasers of stock that said association had a capital stock of $60,000; that it owned an oil and gas lease of 22 acres out of the southeast corner of the 50-acre tract of the Du Bose survey, in the Burkbur- It is further alleged that, although repeatnett oil field, in Wichita county, Tex., and ed demands have been made on the trustees contracted and agreed to and with said pur- and officers for a financial statement as to chasers of stock that the association would the condition of the association, and of the begin an oil well as soon as the capital receipts and disbursements made by the stock was placed, said well to be drilled to trustees and officers, said demands having stockholders; that said trustees have incurred an indebtedness in excess of $10,000 over and above the receipts of said association and in addition to the funds that said company so misappropriated as hereinbefore alleged; that said well, instead of being revenue-producing, has been so mismanaged by the trustees as to be a loss and an expense rather than an asset; that said trustees are each and all insolvent; that on or about the 23d day of June, 1919, they executed a fictitious note to the defendant Dallam County Bank in the sum of $9,997.32, due one day after been first made about May 1, 1919, and continued and repeated to the present time, they have failed and refused to furnish a financial statement or to inform plaintiffs or other stockholders as to receipts and disbursements, or make any report as to the condition of the affairs of the association, showing its assets and liabilities, save and except that they prepared and mailed to the shareholders a printed letter about the 10th day of June, 1919, in which they stated that the first well had been completed; that it was not producing as much as they anticipated, but the pipe line receipts showed its produc-date, bearing interest at the rate of 8 per tion to be approximately 30 barrels of oil daily. Said letter further states that they had a contract with the company to take the casing head gas which would yield some income, and would have a tendency to increase the production of oil; that they were in communication with a contractor to drill one or more wells on the west 22-acre lease and promising to keep the stockholders advised of any action taken by the trustees in that regard. It is further stated in said letter that the expenses were heavy, that there would be no dividends available for a few months, but that they were operating as economically as possible. It is further alleged that on or about the 11th day of June, 1919, 56 of the shareholders presented to the defendants a written statement requesting the following information: "(1) A statement of the stock issued and paid for in said association. "(2) The net proceeds from the sale of said stock paid into the association. "(3) An itemized accounting of the expenditures of said association to the 1st day of June, "(6) A general financial statement of the association to June 1, 1919, showing all assets and liabilities. "(7) The names of the officers receiving and disbursing the funds and whether or not said officers are under bond." In said written request it was suggested that said statement be either published or filed with the secretary so as to be available for inspection by all parties interested on or before the 1st day of July, 1919. That the officers and trustees have wholly failed and refused to furnish any kind or character of information, as requested by said writing; | that although the well on said 14-acre tract was completed during the last days of April, 1919, and has been producing continuously since said date, no dividends have been declared nor any information imparted to the cent. per annum from date, and at the same time executed to B. N. Richards, as trustee, a deed of trust conveying the said oil and gas lease and all the personal property, effects, tools, goods, wares, and merchandise belonging to the association for the purpose of se curing payment of said note; that said note and mortgage were executed for the fraudulent purpose of enabling the bank and Richards to summarily dispose of all the assets of said association and deprive the stockholders thereof; that the makers of the deed of trust and the defendant bank all well knew and were informed at the time of the execution of the note that the association was insolvent; that the proceeds from the well were little more than sufficient to pay the cost of operating the same in the manner in which it was being done, and that there was no possibility that the association or trustees would have any funds with which to discharge the note due one day after date; that plaintiffs are informed that the mortgaged property is now being offered for sale under the deed of trust, and, unless restrained, it will be sold without notice to the shareholders, and the money applied to the payment of said fictitious note; that the association has never at any time really been indebted to said bank, and, unless prevented, said bank will acquire title to and possession of all the property and effects of the association; that said trustees have not at any time given the duties incumbent upon them their personal attention, but that they placed the drilling of the well in charge of a person known to them to be unworthy of the trust and turned over to him large sums of money, without exacting a bond or other security from him; that the said person shortly thereafter absconded with about $2,000 of the funds of the association, which has never been recovered nor refunded nor any part thereof; that after said well began to produce oil they placed the same in charge of a person wholly inexperienced with such work, all to the great loss of the shareholders, and that they are paying such person a large salary for his services; that, although they have made diligent effort by repeated requests to be furnished with a list of all the stockholders, the officers and trustees have failed and refused to give them (220 S.W.) such information; that plaintiffs have further | fendants herein, being personally insolvent, requested and demanded that the books showing the shares, interests, and amount of stock sold and issued and the books showing the receipts and disbursements of the company be exhibited to them, and such requests have been refused; that the treasurer has heretofore informed and advised these plaintiffs that he has never been furnished with any kind or character of books of accounts, or handled any of the funds received by or paid out by the trustees, and that he knows nothing concerning the receipts and disbursements. Plaintiffs charge that the defendant Bingham has in his custody and possession the books, accounts and records of the association, and, although demand was made upon him in person to exhibit the same to plaintiffs, he has failed and refused and still fails and refuses to exhibit the same to them. Plaintiff's charge upon information and allege the facts to be that the trustees are now seeking to sell and dispose of all the property | by alleged authority of the articles of the association, and, if permitted to do so, they will sell the same at a price far below its market value; that the trustees are wholly insolvent, as all of the assets of the association have been dissipated, save and except the property covered by the deed of trust, and all of the assets on hand out of which the plaintiffs have any present hope of receiving any portion of the funds consist of the proceeds of said assets, save and except such amounts as they may be able to recover from the defendants; that the oil from said well is being pumped from day to day by the Greater Texas Company, at an agreed price unknown to plaintiffs, and that the party in charge of the well is failing and refusing to pay said company for its services rendered in pumping the oil from said well, in consequence of which the Greater Texas Company is now threatening to take immediate possession of the well, tools, tanks, and other assets of the association, and that the trustees will not seek to prevent the same, and if they do the said company will' at once institute suit and levy court process upon all of said property and subject the same to the payment of their debt; that the said trustees have long since abandoned the direct management, supervision, or control of the affairs of the company, and have left the same in the hands of a wholly inexperienced person, to the great detriment of the shareholders; that said trustees are now offering for sale and may sell and dispose of the said property before they could be properly restrained by writ of injunction, for the reason that part of them are in the Burkburnett oil fields, a place where it is almost impossible to reach a person by court process, and it would be impossible to get court process of any kind prompt ly served upon them; that the trustees, de and having spent, wasted, misappropriated, and dissipated all of the funds of the association, and having incurred very large indebtedness, and there being on hand but a small amount of assets out of which claims can be paid, it is of great importance that as much of same be saved as possible; that because said defendants may not have properly placed the title to the above-described real estate as required by the articles of the association, although it was paid for with the funds of the shareholders, it is essential that a receiver be appointed to take charge of the same, prevent its alienation, and hold it for the benefit of the plaintiffs; that others of the defendants than the trustees are now in the oil fields and in and about Burkburnett and Electra, their whereabouts being unknown, and cannot be reached by the ordinary process of law, so as to give them proper notice of this action within a reasonable time. [1-3] The first question to be considered is raised by the fifth proposition in the appellant's brief, by which it is asserted that the appointment is void for the reason that it was made before the petition was filed and the suit instituted. It appears from the record that the petition was filed with the clerk of the district court of Dallam county July 18, 1919. The order appointing the receiver bears the same date, and there is nothing in the record to show that the order was made before the petition was filed. The rule is, as contended for by appellant, that the court has no right to appoint a receiver prior to the institution of the suit. Webb v. Allen, 15 Tex. Civ. App. 605, 40 S. W. 342; Howell v. Harris-Cortner & Co., 168 Ala. 383, 52 South. 935, Ann. Cas. 1912B, 236, and note. Accompanying the record is an affidavit made by the clerk of the district court of Dallam county in which he states that at the time the petition was filed with him on the 18th day of July the district judge had attached to and affixed to the petition his order and fiat appointing J. N. Cole as receiver of the Texline-Burk Oil Company. If this affidavit related to or affected the jurisdiction of this court, it could be considered, but, since it goes to the jurisdiction of the trial court only, we cannot consider it. Courts of Civil Appeals will not hear evidence outside the record tending to show want of jurisdiction in the lower court. Poole v. Mueller, 30 S. W. 951; T. & P. Ry. Co. v. Hood, 59 Tex. Civ. App. 363, 125 S. W. 982. Such being the state of the record, the presumption of the legality and regularity of official acts and that the proceedings of the trial court are regular and legal obtains, and this contention must be overruled. [4] The next proposition urged and to be considered is that, because the Tex line-Burk Oil Company was not eo nomine made a party to the suit, the court had no authority to to make all shareholders parties by the allegation that they have been denied the right to inspect the books and records, and that the defendants refuse to furnish them a list of shareholders. While this would not be an excuse for failing to make the association itself a party, the law relieves them of that duty, when it is shown that the trustees, by virtue of their office, may sue and be sued. A recovery under such circumstances would be for the benefit of the association and all stockholders not parties, and a judgment in such an action would be res judicata of all matters litigated. Canadian C. v. Johnson, 176 S. W. 385. Nothing more than a technical reason is shown for making the association a party to the suit. It has committed no wrong, and indeed it is difficult to see how it could do so separate and apart from the trustees. As shown by the petition, the legal title to the property is in the board, and not in the association. The equitable title is in the stockholders and the association. No effort is made to dissolve the association, to dispose of its property, or wind up its affairs. The case of Anderson v. Stockdale, 62 Tex. 54, is one where the legatee under a will sued the executor of the will, who had conveyed land to a joint-stock company, joining as defendants in the suit only the trustees of the company. The instrument there, as in this case, vested in the company the legal title to the land in certain trustees, and con appoint a receiver for the property. While shares of stock. They excuse their failure the proposition states the general rule, it should not be enforced here by reason of the broad powers vested in the trustees by the signed articles. The effect of V. S. C. S. arts. 6149-6154, is to give the association a legal entity, distinct from its members, but the language of the statute is that such an association may sue or be sued in its distinctive name, but the last-named article provides that the chapter is merely cumulative to other remedies now existing under the law, and, even if it should be applied to suits instituted by shareholders against the officers or trustees of such an association, under the authorities as we understand them, the plaintiffs in such suit are not required to make the association as such a party. Admitting that the association has an entity separate from its members, it is in this case, according to the allegations of the petition, only a name, and at most the association is a beneficiary, not as a separate entity, but in the sense that it includes its stockholders who are the real cestuis que trustent. We were mistaken in the original opinion in stating that no association had ever been formed. Taking the allegations of the petition as true, the articles of association were sufficient to create the association. The petition affirmatively alleges the formation of a joint-stock association, and further that those who promoted it and signed the articles vested the manage ment of all the affairs of the association in a named board of trustees and their succes-ferred upon them, as in this case, completed sors; said board having the power to elect a president, vice president, secretary, and treasurer, and to create such offices as the board may deem proper, filling them by appointment. The instrument further vests the title to all property acquired or to be acquired by the company in such trustees as joint tenants under a declaration of trust. The trustees have full power and authority, upon a vote of a majority of the board, to conduct the business of the company, make necessary repairs, borrow money upon such terms as they may deem proper, and to do and perform all things which in their judgment may be necessary in the management and conduct of the business. Their authority is limited only in that they are not to use the funds to secure oil and gas leases except as provided in article 2. In short, the articles of association substitute the trustees for officers, and confer upon them all the power and authority which are generally vested in the officers of such associations. It must be presumed from this statement of the powers conferred upon the trustees, limited only in the matter specified, that they were authorized to prosecute and defend suits in their own names. Here the plaintiffs, holding 200 shares of the stock, sue for themselves and for the use and benefit of all other share holders who have bought and paid for their power over the property, including the right cumstances a trustee may represent his ben- |